This appeal is upon a stipulated statement, pursuant to Florida Appellate Rule 3.6(h), 31 F.S.A., showing how the points to be presented arose and were decided. It sets forth only so many of the facts averred and proved, or sought to be averred or proved, as are essential to a decision of the points by this court. This procedure clearly focuses the court's attention to the points involved on the appeal and eliminates the immaterial matters often contained in the record.
Margaret Vance Smith and Eric A. Ryan entered into a contract, whereby Ryan agreed to furnish all labor and materials and do all things necessary to make certain structural changes in the residence of Smith and install therein an air-conditioning system. The contract was in two parts; one
Plaintiff's claims are based upon allegations that the air-conditioning system was so negligently and defectively installed that it caught on fire and that the nature of the fire and damages was such as would not have occurred but for negligence in making the installation, in that said fire was not caused by lightning or acts of God or nature, and that had the system been properly and skillfully installed and wired, the fire resulting in damages would not have occurred.
The court entered summary judgment in favor of the defendant contractor, reciting that it was the opinion of the court that Articles 29 and 31 of the General Conditions of the Contract imposed an affirmative obligation upon the owner to procure fire insurance insuring the interest of both the owner and contractor, irrespective of the negligence of either, resulting in loss by fire. We affirm.
The effect of the court's ruling was, that the failure of the owner to comply with her agreement to provide fire insurance in which the contractor was named as an insured precludes her recovery against the contractor for the benefit of her insurer.
Pertinent provisions of the typewritten part of the contract headed "Agreement Between Contractor and Owner" are as follows:
The pertinent provisions of that part of the contract headed "The General Conditions of the Contract for the Construction of Buildings," in printed form, are as follows:
It is never presumed that a contract is intended to protect one against his own negligence, and hence, unless it clearly so states, the courts hold that such was not the intention. Annotation 175 A.L.R. 8; Jackson v. Florida Weathermakers, Fla. 1951, 55 So.2d 575. This contract clearly requires the owner to carry fire insurance naming the contractor as one of the insured, thereby bringing the contractor within the provisions of law that an insurer cannot maintain a subrogation suit against its own insured. Miller v. Kujak, 1958, 4 Wis.2d 80, 90 N.W.2d 137; and Glens Falls Ins. Co. v. Globe Indemnity Co., 1948, 214 La. 467, 38 So.2d 139. The obvious purpose of Articles 29 and 31 was to prevent such a subrogation suit. Parker and Adams, The A.I.A. Standard Contract Forms and the Law. The contract contemplated the shifting of any risk of any of the parties from damage by fire to an insurer, irrespective of negligence. Similar cases, although not directly in point, are Checkley v. Illinois Central R. Co., 1913, 257 Ill. 491, 100 N.E. 942, 44 L.R.A.,N.S., 1127; Deming v. Merchants' Cotton-Press & Storage Co., 1891, 90 Tenn. 306, 17 S.W. 89, 13 L.R.A. 518. The owner's failure to fulfill her obligation to obtain insurance caused her to become the insurer and liable as such. Zortman v. Volk, 1929, 97 Pa.Super. 137; 4 Appleman, Insurance Law and Practice, 113, § 2261. When the contract is considered in its entirety, it is apparent that Articles 29 and 31 are the only provisions of the contract dealing specifically with the subject of fire insurance and the effect of the owner's failure to carry the insurance. The other provisions deal with other subjects and circumstances. There are no other inconsistent provisions on the subject of fire insurance, so we need not be concerned with the statement in the agreement "if anything in the said General Conditions is inconsistent with this Agreement, the Agreement shall govern," and finding no conflict, the fact that that part of the agreement was typewritten and the General Condition's part was a printed form becomes of no consequence.
The judgment is affirmed.
SHANNON, C.J., and KANNER, J., concur.